Exhibit 10.35
EMPLOYMENT AGREEMENT
This Employment Agreement (this
“Agreement”) is between XELR8, Inc. (the
“Company”) and John Pougnet (“Employee”),
and is executed effective as of June 1, 2009 (the “Effective
Date”) in connection with and consideration of the
compensation set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged.
1. Previous
Employment Agreement .
A.
Previous Employment Agreement . The Company and
Employee have previously entered into that Employment Agreement
dated effective February 1, 2008 (the “Previous Employment
Agreement”), pursuant to which Employee was employed as Chief
Executive and Chief Financial Officer of the Company for a term of
two years. The Company and Employee now desire to
terminate the Previous Employment Agreement, and to replace it with
this Agreement.
B.
Termination of Previous Employment Agreement
. The Previous Employment Agreement is terminated on
mutual agreement of the Company and Employee effective as of the
Effective Date. The Previous Employment Agreement shall
be of no further force or effect hereafter, and neither party shall
have any further obligations or duties with respect to each other
under the Previous Employment Agreement; however, this termination
shall not extinguish Employee’s rights in any stock options
previously granted to Employee. It is expressly agreed
that Employee shall have no claims related to any accrued vacation
under the Previous Employment Agreement.
2. Services to
be Rendered by Employee . The Company hereby
employs, engages and hires Employee in the capacity of Chief
Financial Officer, and Employee hereby accepts and agrees to such
hiring, engagement and employment. Employee shall have
those duties specified on Exhibit A hereto, which is
incorporated herein by this reference. In this position,
Employee shall report to both the Chief Executive Officer of the
Company and the Company’s Audit
Committee. Employee will devote his reasonable efforts,
energy and skill to the performance of these duties and for the
benefit of the Company, and will exercise due diligence and care in
the performance of all duties performed for the Company under this
Agreement. Employee will devote the time necessary to
fulfill Employee’s duties to the Company. However,
Employee shall not be required to devote his full time efforts,
energy and skill to the performance of these duties, nor will he be
required to fulfill these duties solely at the offices of the
Company. The Company expressly agrees that Employee will
be entitled to seek and engage in other employment and business
activities, unless such employment or activities would violate the
non-competition covenant in Section 7 or any other provision of
this Agreement.
3. Term;
Termination .
A. Term
. Subject to the terms and conditions of this Agreement,
the Company will employ Employee, and Employee will serve the
Company, for one year from the Effective Date (the
“Term”).
B. Termination by
the Company . Employee’s employment may only
be terminated by the Company during the term of this Agreement for
“Cause,” which termination may occur without prior
written notice to Employee. Termination for Cause shall be defined
as any of the following from and after the Effective
Date:
(a)
Any
willful breach of any material written policy of the Company that
results in material and demonstrable liability or loss to the
Company or that continues after written notice;
(b)
Willful failure to perform or gross negligence in connection with
the performance of Employee’s duties;
(c)
The
engaging by Employee in conduct involving moral turpitude that
causes material and demonstrable injury, monetarily or otherwise,
to the Company, including, but not limited to, misappropriation or
conversion of assets of the Company (other than immaterial
assets);
(d)
Conviction of or entry of a plea of nolo contendere to a
felony;
(e)
A
material breach of this Agreement, including by engaging in action
in violation of the restrictive covenants in this Agreement;
or
(f)
Any
other conduct or activity that the Chief Executive Officer
determines in good faith jeopardizes the proper conduct of the
Company’s operations if such conduct or activity continues to
occur after written notice.
No act or
failure to act by the Employee shall be deemed
“willful” if done, or omitted to be done, by him in
good faith and with the reasonable belief that his action or
omission was in the best interest of the Company.
C. Termination by
Employee . Employee may terminate his employment by
the Company at any time by giving 14 days prior written notice
thereof to the Company.
D. Effect of
Termination . Upon termination of Employee’s
employment pursuant to Section 3(B) or Section 3(C) or expiration
of the Term, the Company’s obligations under this Agreement
will terminate.
4.
Compensation;
Benefits .
A. Base Salary
. During the term of this Agreement, the Company will
pay to Employee base salary (“Base Salary”) at the rate
of $112,500 (One Hundred Twelve Thousand Five Hundred and No/100
dollars) per annum, it being recognized that the sum of $12,500
represents payment for accrued but unpaid vacation time due and
payable Employee.
B. Additional
Bonus . Employee will be eligible to participate in
any bonus program established by the Compensation Committee of the
Board of Directors of the Company (the “Compensation
Committee”), provided that Employee is eligible by the terms
thereof to participate therein.
C. Benefit
Plans . Employee will be entitled to participate in
all formal retirement, insurance, hospitalization, disability and
other employee benefit plans that are in existence or may be
adopted by the Company or in which employees of the Company are
eligible to participate, provided that Employee is eligible by the
terms thereof and applicable law to participate therein.
D. Company Laptop
Computer, Cellular Telephone, and Home Internet Connection .
During the Term, the Company will provide Employee with a laptop
computer, a cellular telephone, and a high speed Internet
connection at Employee’s home, for use by Employee in the
performance of his duties hereunder. The Company will
pay all costs associated with acquiring these items and services,
and will pay any ongoing charges and expenses related to these
items and services during the Term. The laptop computer
and cellular telephone provided to Employee by the Company shall
remain the property of the Company and shall be returned to the
Company upon termination of Employee’s employment with the
Company. The high speed Internet connection at
Employee’s home may be terminated by the Company upon
termination of Employee’s employment with the
Company.
E. General
. All payments under this Agreement will be subject to
applicable withholding and similar taxes and will, if applicable,
be prorated for the applicable period. Employee’s
Base Salary and other compensation will be paid to Employee in
accordance with the Company’s regular policy. The
Compensation Committee will, in its sole discretion, periodically
review Employee’s Base Salary and other
compensation.
5. Protection
of Trade Secrets and Confidential Information .
A. Definition of
“Confidential Information
. “Confidential Information” means all
nonpublic information concerning or arising from the
Company’s business, including particularly but not by way of
limitation trade secrets used, developed or acquired by the Company
in connection with its business; information concerning the manner
and details of the Company’s operation, organization and
management; financial information and/or documents and nonpublic
policies, procedures and other printed or written material
generated or used in connection with the Company’s business;
the Company’s business plans and strategies; the identities
of the Company’s customers and the specific individual
customer representatives with whom the Company works; the details
of the Company’s relationship with such customers
and
